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Before Karen Gullo and David Scheer broke the story yesterday for Bloomberg News, Apple (AAPL) managed to keep secret for five weeks the fact that Steve Jobs was subpoenaed by the SEC on Aug. 16 to testify in the government’s case against his former general counsel Nancy Heinen.

It’s not hard to see why. The news opens once again a chapter that Apple hoped had closed for good last April when the SEC announced that it would not sanction the company for the options backdating episode at the center of the case. At the time, the agency even went out of its way to praise Apple for its “prompt self-reporting” and the thoroughness of its internal investigation. (See here.)

But as Michelle Quinn and Jessica Guynn point out in today’s LA Times, “the SEC said it would no longer investigate Apple, but it has not ruled out continued scrutiny of Jobs.”

Which raises an interesting dilemma for Apple’s CEO when he appears before the SEC.

Does he cooperate fully, as he reportedly did last winter as part of
the agency’s initial investigation, and risk contradicting his earlier
testimony? Or does he invoke his constitutional protection against
self-incrimination?

A couple things have changed since April, when the SEC filed civil
charges against Heinen and former Apple CFO Fred Anderson. Although
Anderson immediately settled, paying some $3.5 million in fines and
penalties but admitting no wrongdoing, he fired a parting shot in which
he claims that 1) he had warned Steve Jobs that backdating options
could be a problem, 2) was told by Jobs that Apple’s board had
pre-approved the deal and 3) learned later that this might not have
been true. (See here.)

Heinen, who chose instead to fight the charges, also maintains that
she was only following orders. Her attorney claimed in April that
“every action that Nancy took was fully understood and authorized by
Apple’s board of directors,” and last month requested depositions from
45 witnesses to prepare her defense. Writing in his Ideoblog,
law professor Larry Ribstein suggested that Job’s claims of ignorance
could get more tenuous as people like Heinen and Anderson start to
talk. And as Charles Jade points out in Ars Technica’s Infinite Loop:
“45 people under oath makes for a lot of talk.”

Meanwhile, the stakes have been raised by the harsh penalties faced
by another CEO caught in the government’s backdating net. In August, a
federal jury convicted
Gregory Reyes, former chief executive of Brocade Communications
Systems, for his role backdating stock options that weren’t even for
him. Reyes is scheduled to be sentenced
Nov. 21 and could face 20 years in prison.

Daniel Lyons, a senior editor at Forbes whose novel Options (Da Capo), written under the pseudonym Fake Steve Jobs, is due out next month, addressed the issue yesterday in The Secret Diary of Steve Jobs:

What’s really going on? It’s like this. We threw Fred and Nancy under a
bus, and said that I was completely innocent due to my utter ignorance
of all things related to stock and money and finances. So the SEC says,
Okay, well, Steve, then we’d like you to help us build our case against
Nancy. How about you come in and answer some questions. Tell us all
about how you knew nothing and it was all Nancy’s idea. No problem if
we put you under oath, right?

It’s called a perjury trap. Oldest trick in the book. So how did I respond? That part I can’t tell you. (link)

This is meant to be satire, to be sure, but it has the sting of truth.

Apple has not yet responded to a request for comment.

• ! Ask Salomon Store !

Until yesterday, Apple (AAPL) had kept mum about attempts by various
third-party programmers to free the iPhone from the binds that tie it
to a particular carrier — AT&T (T) in the U.S. and now O2 in the
U.K. and T-Mobile in Germany. As recently as last week Apple responded to questions about the
release of iUnlock with a terse “no comment.”

But when asked a direct question at the “Mum is no longer the word”
press conference in London yesterday, Steve Jobs couldn’t remain silent
– especially in front of Matthew Key, CEO of O2 UK, which by all
accounts has paid a pretty penny to be the iPhone’s sole provider in
Britain. Jobs responded to the question “Is unlocking a concern?” as
follows:

“It’s a constant cat and mouse game — we have the same thing with the
iPod with music.” Steve looks at Matthew, “Are we the cat or mouse? We have to stay one step ahead of them.” (quote from Engadget’s live blog)

The analogy to music is a curious one, given that Jobs has argued
forcefully against DRM (digital rights management) schemes that make it
hard to copy digital music files — despite the fact that Apple uses them in iTunes. This may explain his professed
confusion about whether Apple is the cat or the mouse in this new game.

Should unlocked
iPhones proliferate much beyond the hacker community,
Apple would be less at risk than the cellphone carriers. Apple
gets paid for its hardware in any event, whereas user fees are the
carrier’s main source of iPhone revenue.

Apple has not yet deployed its most powerful tool for combating unlock programs:
firmware updates for the iPhone so far have disrupted some third-party apps, but haven’t touched the unlock solutions. That will almost
certainly change, and when it does the cat-and-mouse game Jobs
describes will begin in earnest.

Meanwhile, as Gregg Keizer points out today in Computerworld,
Apple and O2 have found other means of encouraging British customers to
stick with authorized iPhone dealers and carriers. The flat-rate plans
(with unlimited data transfers) that O2 announced yesterday are a
pretty sweet deal in the Europe smartphone market, where pay-as-you-go
is the norm. An even better sweetener may be the free account British iPhone customers will get with The Cloud, which has blanketed London’s financial district with Wi-Fi and
boasts some 7,500 hot spots in Great Britain and Ireland.

Given that only 30% of the U.K. is covered by O2’s EDGE network, iPhone
access to those hotspots could turn out to be key.

[Photo courtesy of Shaun Curry/AFP/Getty Images via the New York Times]

• ! Ask Salomon !

At a press conference in Berlin today, Steve Jobs announced that Deutsche Telekom AG’s T-Mobile division will carry Apple’s (AAPL) iPhone in Germany. The device will be go on sale on Nov. 9 for €399 ($553) and will offer access to T-Mobile’s 8,600 Wi-Fi hotspots in Germany.

You can read the official press release here.

• ! Ask Salomon Store !

Until yesterday, Apple (AAPL) had kept mum about attempts by various
third-party programmers to free the iPhone from the binds that tie it
to a particular carrier — AT&T (T) in the U.S. and now O2 in the
U.K. and T-Mobile in Germany. As recently as last week Apple responded to questions about the
release of iUnlock with a terse “no comment.”

But when asked a direct question at the “Mum is no longer the word”
press conference in London yesterday, Steve Jobs couldn’t remain silent
– especially in front of Matthew Key, CEO of O2 UK, which by all
accounts has paid a pretty penny to be the iPhone’s sole provider in
Britain. Jobs responded to the question “Is unlocking a concern?” as
follows:

“It’s a constant cat and mouse game — we have the same thing with the
iPod with music.” Steve looks at Matthew, “Are we the cat or mouse? We have to stay one step ahead of them.” (quote from Engadget’s live blog)

The analogy to music is a curious one, given that Jobs has argued
forcefully against DRM (digital rights management) schemes that make it
hard to copy digital music files — despite the fact that Apple uses them in iTunes. This may explain his professed
confusion about whether Apple is the cat or the mouse in this new game.

Should unlocked
iPhones proliferate much beyond the hacker community,
Apple would be less at risk than the cellphone carriers. Apple
gets paid for its hardware in any event, whereas user fees are the
carrier’s main source of iPhone revenue.

Apple has not yet deployed its most powerful tool for combating unlock programs:
firmware updates for the iPhone so far have disrupted some third-party apps, but haven’t touched the unlock solutions. That will almost
certainly change, and when it does the cat-and-mouse game Jobs
describes will begin in earnest.

Meanwhile, as Gregg Keizer points out today in Computerworld,
Apple and O2 have found other means of encouraging British customers to
stick with authorized iPhone dealers and carriers. The flat-rate plans
(with unlimited data transfers) that O2 announced yesterday are a
pretty sweet deal in the Europe smartphone market, where pay-as-you-go
is the norm. An even better sweetener may be the free account British iPhone customers will get with The Cloud, which has blanketed London’s financial district with Wi-Fi and
boasts some 7,500 hot spots in Great Britain and Ireland.

Given that only 30% of the U.K. is covered by O2’s EDGE network, iPhone
access to those hotspots could turn out to be key.

[Photo courtesy of Shaun Curry/AFP/Getty Images via the New York Times]

• ! Ask Salomon !

At a press conference in Berlin today, Steve Jobs announced that Deutsche Telekom AG’s T-Mobile division will carry Apple’s (AAPL) iPhone in Germany. The device will be go on sale on Nov. 9 for €399 ($553) and will offer access to T-Mobile’s 8,600 Wi-Fi hotspots in Germany.

You can read the official press release here.

• ! Ask Salomon Store !